We believe in offering a wide range of perspectives here at Above the Law. That’s one thing that’s nice about having four full-time writer/editors — myself, Elie, Staci Zaretsky, Chris Danzig — and about a dozen outside columnists.

Today we bring you a different viewpoint on the Baylor law admissions data. Prominent lawyer and blogger Ted Frank, previously profiled in these pages for his work in the class-action area, uses the same data to argue against affirmative action.

Eyeballing the numbers (and I haven’t done a full statistical analysis on this data because I think it’s kind of missing the point), I see about a three to four point bump for African-American or Hispanic students. By “bump,” I mean to say that if you were a white student, you had a fighting chance to get into Baylor with a 161 or 162 LSAT score. If you were black or Latino, you were in the running with a 159 or 158. There are some outliers, of course — a black kid with a 156, a white kid with a 158 — but, in general, I’m eyeballing the mode for white students at 162, and the mode for blacks and Hispanics at 159 or 158.

Unlike Elie, who merely “eyeball[ed]” the data, Ted Frank conducted a detailed statistical analysis. It’s available in full over at Point of Law. Responding to Elie, Frank writes:

This is wrong for a couple of reasons. First, there’s an iceberg effect; the spreadsheet doesn’t have the data of the people who were rejected for admission. If a 3.7 GPA/162 LSAT gets a white a 30% chance of admission, but an African-American a 90% chance of admission (or vice versa), then there’s racial bias with real adverse effects on the disfavored race, even if the averages in the admitted student body doesn’t show a lot of disparity. But it’s wrong because there’s no reason to “eyeball.” It’s already in a spreadsheet; do an hour of work and run the real numbers.

That’s a completely fair point. The Baylor information, although a treasure trove of data, does not include information on rejected students — information that might dramatically alter the picture.

Ted Frank also points out another area where race clearly matters, namely, scholarship money:

Though non-Asian minorities had slightly lower Index scores on average, they averaged $24,231 in scholarship money; whites and Asians averaged under $20,000. It’s unclear to what extent Baylor Law considers financial need in scholarship money, but it’s clear that merit makes a big difference. Over 90% of students with Index scores [note: an LSAT Index adds the LSAT to 10 times the GPA] above 206 got full scholarships (the three who didn’t were white); less than 3% of students with Index scores below 202 got full scholarships, and all seven were African-American or Hispanic.

Frank calculates the value of the right kind of skin pigmentation or ethnic background:

Checking the African-American box on your Baylor Law application is worth $9575/year, all else being equal; Hispanic heritage is worth $7023. In other words, if you were a white with your heart set on a scholarship to Baylor Law, and a magical genie offered you the choice of increasing your LSAT score by 4 points or changing your skin color, you’d be better off financially with the latter option.

In fairness to Baylor, they’re just trying to “keep up with the Joneses,” in a certain sense. Frank explains:

I don’t mean to single out Baylor; it’s undoubtably the case that virtually every other top-sixty school is engaging in the same shenanigans in competing for a limited pool of qualified African-Americans. (NB that I am not claiming that the pool is limited because African-Americans are not smart enough to go to law school; miserable urban public school systems and the disproportionate number of single-mother families surely do a lot to depress the number of African-Americans who get the education to do well at college and apply to law school.)

As Richard Sander has noted, Baylor’s plight is created by the better-ranked schools above it poaching the African-American students who would otherwise be at the top of the Baylor Law class; Baylor has to pony up extra scholarship money just to attract the handful of African-Americans it does have. But it really surprises me that a group as litigious as white law students hasn’t done more to ask for the law to be evenly applied; this is a much easier case for plaintiffs than complaining about alleged consumer fraud in employment statistics.

UPDATE (2:00 PM): Just a small clarification. The Fisher case concerns the Equal Protection Clause of the Fourteenth Amendment, which applies to state action. Private universities like Baylor have more leeway in admissions; they’re subject to federal and state anti-discrimination laws, but not to the strict scrutiny of a governmental racial classification.

P.S. If you’re interested in these issues, you should definitely check out Ted Frank’s complete post. We’ve given you mere excerpts; there’s a lot more in his analysis that’s worth reading.

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